AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The relevant turnover is the turnover of the buyer and the target. However, if the seller keeps 25% or more of the shares (and/or direct control) in the target, the seller’s turnover must also be included in the target’s turnover. Austrian law provides for a somewhat extraordi - nary definition of what constitutes the relevant “group”, which deviates from the rules of the EUMR. Under Austrian law, the turnover of all undertakings linked to the parties concerned by direct or indirect control, or by an upstream or downstream shareholding of at least 25%, must be included in full (ie, not on a pro rata basis). Changes in the business (such as acquisitions or divestments) after closing of the preceding financial year but before implementation of the planned transaction must be reflected in the analysis of whether the relevant thresholds are met. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to merger control in Austria; a local presence is not required. If the thresholds are triggered, a filing is required unless the “effects doctrine” applies. Besides the precondition that the target does not achieve any turnover in Austria, it must be shown that the planned transaction will have no effect on the Austrian market. Effects resulting in an obligation to file could exist, for example, on the basis that the target will be active in Aus - tria in the near future, or that the target, though not active in Austria, is active in a broader geo - graphic market that encompasses Austria (eg, an EU-wide market).
With the introduction of the second national threshold (see 2.5 Jurisdictional Thresholds ), the “effects doctrine” can only apply if the tar - get (without any turnover in Austria) will have, post-transaction, two parental undertakings, which both hold at least 25% in the target and which both trigger the national thresholds (ie, combined Austrian turnover of EUR30 million and EUR1 million each). 2.9 Market Share Jurisdictional Threshold There is no market share threshold in Austrian merger control. 2.10 Joint Ventures Under Section 7 (2) of the Cartel Act, Austrian merger control follows Article 3 (4) of the EUMR, according to which “the creation of a joint ven - ture performing on a lasting basis all the func - tions of an autonomous economic entity shall constitute a concentration”. However, contra - ry to the EUMR (which, as clarified in Austria Asphalt GmbH & Co OG v Bundeskartellanwalt , ECLI:EU:C:2017:643, C-248/16, only treats full-function joint ventures as concentrations, whether newly created or converted from an existing undertaking), the creation of a non-full- function joint venture might also trigger an obli - gation to file in Austria. This is the case if one of the parent companies transfers a ”substantial part of an undertaking” into the joint venture. A “substantial part” may include production facili - ties, customer lists, patents, etc. In specifying the term ”substantial part”, the Supreme Cartel Court refers to whether a (potential) market posi - tion is, or will be, transferred with the transaction (Case No 16 Ok 8/01).
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